26th March 2021
Whenever a constitutional wrong becomes apparent there is a reflexive demand for a ‘written [or codified] constitution’.
Having a written constitution, it would seem, would just make things better – rather than, as is my view, probably make things just as bad but differently.
(On my scepticism about written constitutions as a panacea see my Prospect piece.)
But this post comes at the topic from a different angle.
Those who demand a written constitution often seem unaware that it is already set out in writing – if you know where to look.
And just as those who wish for a month of Sundays usually do not know what to do with a spare afternoon, those who pine for a written constitution do not read where the constitution is already set out in writing.
Here are four places where you can read the constitution of the United Kingdom online which you may or may not already now about.
Note, however, that each of these are practical rather than academic or theoretical materials.
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The first is the Cabinet Manual – which governments (of all parties) since 2010 have averred sets ‘out the main laws, rules and conventions affecting the conduct and operation of government’.
Of course, this is the government’s own view of the constitutional arrangements in which it operates – but it also is a comprehensive and clear overview of how the various elements of state are at least supposed to fit together.
You can click and read the pdf here.
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So much for the ‘high level’ constitutional summary – now we turn to how public bodies make (or should make) decisions.
Here we have a wonderful publication published for government lawyers called ‘the Judge over your shoulder’ – which is described formally as ‘guidance to help you understand the legal environment in which government decisions are made and assess the impact of legal risk’ – and is described informally as pretty much a god-send.
This publication set out how decisions and actions by public bodies can be rendered ‘judge-proof’ – that is lawful – and it is updated from time to time.
You can click and read the pdf here.
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We move on now from the executive to the legislature, that is parliament.
The key text for understanding what parliament can and cannot do – and the text of which can make a real difference at important political moments – is known as “Erskine May’.
More formally ‘a treatise on the law, privileges, proceedings and usage of parliament’ – this document was for a long time (indeed for far too long) only available to those who knew of its existence and could afford the prohibitive hundreds of pounds that it cost to purchase in hard form.
Such inaccessibility was an outrage – and so it was a boon when the entire text was placed online.
You can click and read it here.
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And now, finally to the judiciary.
In particular to the the power of the courts to review (and sometimes quash) both government decisions and even statutory instruments made under acts of parliament (but not the acts of parliament itself).
The ‘Judge over your shoulder’ gives the government’s view – but to see it from the perspective of the courts (of England and Wales) you need to know about ‘Part 54’ of the civil procedure rules – and its attendant practice direction.
This is, of course, written in legalese – but they also provide an understanding of how the courts would go about holding the other elements of the state to account.
A grasp of what it actually means when you read that ‘the government has been taken to be court’ is invaluable to anyone following the tensions between ministers (and other public officials) and the judges.
You can read Part 54 here and its attendant practice direction here.
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Of course, these are not a substitute for a codified constitution – but they do set out in writing what – at least – should happen in the constitutional affairs.
Enjoy clicking and reading.
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What a brilliantly informative post. Thank you.
‘The Judge over your shoulder’ is published by government lawyers for administrators, more than for lawyers. I remember the big training exercise that went on when it was first launched. I was a policy civil servant then.
A very interesting and informative post, as always. Thank you.
One of the core problems that arises when a state does not have a written constitution is that fundamental rights and norms can easily be set on their heads if the political climate is conducive to such developments and the checks and balances that should exist are not hardwired.
This is exactly what is happening in the U.K. at present it would appear. One only has to observe how toothless Parliament really is in the context of the debate around the dreadful Police, Crime, Sentencing and Courts Bill to see this. So many of the structures of the unwritten U.K. constitution appear to rely on a sense of collective understanding and decency around social and political norms which now seems to have broken down. The rule of law is in danger of being replaced by the norm of lies. I will have to reread Alice in Wonderland again to truly appreciate what is happening before my eyes.
In a written constitution the checks and balances between the three branches of Government are clearly set out and “hard wired”. It is usually difficult to change them, requiring either a referendum or a super-majority of some sort. Thus, both the Constitution and the Courts can act as a check against an overweening Government with a large and unprincipled parliamentary majority.
The U.K. doesn’t have this system and its unwritten constitution is now creaking at the seams. Soon, even the right to protest, will be limited and subject to the personal feelings and sentiments of police officers, most of whom are conservative on such matters. Fundamental rights should not be dependent on the whim of police officers.
From the outside, and I write as an Irish person living in Ireland, the U.K. looks to be heading down the same path as populist EU states, like Poland and Hungary. Of course comparisons are invidious and I recognise that the U.K. has a much deeper and longer adherence to the rule of law and to democracy. But how long can this last before the Emperor truly has no clothes?
As one who has had intimate and close connections with the U.K. civil service and body politic over many decades I can only look on with a sense of bewilderment as I witness the slow and deliberate unravelling and undermining of the norms of a profoundly decent society. It is deeply disturbing and I never imagined I would witness such a thing in the U.K.
As an Irishman & having lived in Britain for over 40 years, I still find the general public disinterest in the function of the “constitutional monarchy” and politics more generally, disquieting.
I can understand how it happens as for one, FPTP ensures political representation is maintained at arms length and parliamentary election results are only truly representative in a minority of marginal, “swing” constituencies. If anyone is in any doubt as to why things need to change, they only need to look at the entire brexit saga from 2015, and the resulting chaotic mess, much of which has yet to take real effect.
The appointment of proven unsuitable individuals to cabinet who appear to have little or no accountability to the public for breaking their own rules, underlines how they have been able to play fast and loose with the judiciary and parliament. And despite the appalling response by government to the pandemic, it seems to have given them a taster for even more opportunities to limit discourse in parliament, crack down of the “right of protest” (is there such a legal right?) and reduce the ability of those most in need to seek asylum.
What makes the political situation even worse is the majority of the UK / English media is broadly supportive of these activities and sadly, by the time they come to realise what has happened it will be way too late. For some reason the words “tax” and “poll” come to mind.
Thank you for an informative and interesting post. I’d be interested in your view of the situation vis-a-vis an independent Scotland. It would surely require to have a codified constitution wouldn’t it?
I’ll just remind you that the USA has a written constitution – and look at the mess it is in.
Nothing about a written constitution prevents such abuses, if the political will is there – the USA really is a perfect QED in that regard…
Respectfully, while I see the point you are making, I don’t agree. The US despite its manifold imperfections has certain core rights such as free speech and the right of assembly which are nearly impossible to assail in a legislative sense precisely because of a written constitution. One could never imagine the limitations in protest now being contemplated in the U.K. happening in the US. Not because there isn’t a political will in certain quarters in the US but because the constitution is cast iron on certain freedoms which cannot be easily deconstructed by legislative fiat. .
There are of course significant imperfections in the US constitution not least is a willingness to tolerate widespread gerrymandering One could argue that this is partly the consequence of a federal system. But the US constitution was written over two hundred years ago and has largely stood the rest of time even though it is clear it suffers from deficiencies which are glaringly obvious in the modern age and perhaps as well because it is so difficult to amend in a federal system.
Nothing can prevent significant damage if one elects an amoral populist to a democratic institution as powerful as the Presidency. But a constitution, precisely because of its written checks and balances, can limit that damage. And this has happened in the US I believe. But I accept that a constitution is not a panacea. But it is, if properly constructed, a bulwark for the protection of core rights.
It strikes me that your idealising the idea of a written constitution, and ignoring the Real World evidence against the effectiveness of the protections and benefits that you ascribe to it, John.
No Keith I am not idealising a written constitution. I accept it is not a panacea and have already said so. The point I am making is that if properly written it provides a significant protection for fundamental rights against the machinations of a malign Government and/or Parliament. It also protects an independent judiciary.
The U.K. is unique amongst modern western democracies in not having a written constitution. Therefore the U.K. has little substantive protection against an attack by a malign populist Government and its Parliamentary majority on fundamental rights, including actions by those bodies to limit the ability of the Courts to protect and vindicate those rights.
Unless one has lived outside the U.K., in western parliamentary democracies with written constitutions, it is perhaps hard to conceive of just how powerful a protection a constitution can be and how it can act as a limiting device on the abuse of power by both government and parliament.
Written constitutions also tend to elevate the status, power and authority of the third branch of Government, the Courts. In my view that is a good thing. In most democracies with a written constitution the Courts are seen as the ultimate protectors and vindicators of individual rights against the abuse of power by the other two branches.
Another aspect of a written constitution which has nor been touched on here is that it belongs to the citizens. It is their constitution and being in written form it is readily accessible and understood by them. It can be held in one’s hand. It is the modern equivalent for the masses of the St James bible which ended up democratising the bible (even if this was nit the original intention). . The unwritten U.K. constitution is entirely opaque and I am not convinced that many of the U.K. public comprehend the notion of “fundamental rights” in the manner that citizens of other modern democracies with written constitutions do. In many ways I think U.K. citizens/subjects are impoverished by this absence. Your “unwritten constitution” has in most ways also been developed and evolved without their tacit consent.
Drafting a written constitution for a country like the U.K. would not be an easy undertaking. I suspect it would be a nightmare in fact. That is not a reason for to fail to draft a written constitution. The U.K. is out of step with the rest of the democratic world. Perhaps it is because it clings to a jaded notion of pure parliamentary sovereignty which doesn’t stand up to real world analysis or perhaps it is because citizens of the U.K. see themselves as subjects and not autonomous citizens. I readily admit to being frequently baffled by some of the attitudes I witness in the U.K. and the mix of ancient and modern norms so I may be wrong.
My theory is that those asking for a “written constitution” are really asking for a constitution that cannot simply be changed by act of parliament but requires some more onerous process.
For example the constitution of the United States can only be changed by a 3/4 majority of state legislatures.
In our system based on parliamentary sovereignty it is not clear how this would be possible.
While I quite agree that a constitution being “written” is no guarantee of anything as it depends on what it contains, I believe there is another factor that needs to be taken into account.
Citizens of a country with a written constitution to which those citizens can make ongoing modifications (like Ireland, for example) feel that they have the whip hand over their government, courts and indeed any other agencies who run their lives. I would suggest that such citizens feel free in a way citizens of other countries don’t.
I think you have hit the nail on the head! A written constitution is also an explicit statement of rights, duties and respective responsibilities in areas as diverse as the individual citizen and the different branches of government. And it belongs to the citizen. It is their ownership of their own democracy. It is the fundamental norm for that democracy. And this ownership and these norms are much less obvious in my view in the U.K. system. That’s a significant weakness.
The US Constitution is unusual in that it gives the executive no legislative authority whatever.
The Presidency has enormous power in foreign affairs, very little in domestic.
The US Constitution doesn’t give the president legislative power, but over more than two centuries president after president has taken it, and kept it. Part of that, I think, is because there’s one president, and hundreds of members of Congress, who can and do argue with each other about whether and how to limit the president.
The actual US constitution isn’t just the text, it’s what the courts have said it means. And one thing that isn’t in there is that the courts get to decide what it means–the Supreme Court boldly claimed that power two centuries ago, and has kept it.
I (or any American) agree with some of what they’ve decided the law means, and disagree with other parts. We’ve spent a very long time arguing about what a single sentence–the Second Amendment–means, and different courts have come up with seriously different answers.
I’m not saying, Don’t have a written constitution. I’m saying, It’s not as straightforward as some people are arguing.
The Ten Commandments has stood the test of time without need for amendment because it stuck to the essentials required of a stable human society. It dealt with individual responsibilities not individual rights based based on a deep understanding of human nature and behaviour. A constitution written today without a clear grounding in the past at best would be little more than a reflection of current political and social ideologies. If the UK had introduced a written constitution in 1950 I am sure that today it would be widely condemned, fairly or not, across the political spectrum. Over time values inevitably change as must political institutions and process. A formal constitution, difficult to amend, inevitably sets in stone too many things which require the forces of gradual change i.e. politics to effect. It inevitably hands over to the courts too much responsibility for decisions which should be dealt with in the political process. We see this particularly now in the US, Canada, the EU and increasingly in the UK.
And they absolutely did not need to be written down.
I don’t need to have carved into a piece of rock that I must not kill…
All of these text are useful writings about constitutional matters, but are they part of the constitution?
I would hope and expect a written constitution (or part thereof) to be just that: a document setting out aspects of the constitution of the country, in a form that is legally enforceable. The constitutions of most other countries have some foundational texts of that nature, even when they are based on the flexible Westminster, common law system.
Some texts of that nature exist in the UK (the Parliament Acts, and the Representation of the People Acts, for example), and the Civil Procedure Rules and Practice Directions are certainly ones that have teeth within their sphere, but the others mentioned here are more descriptive of what has usually happened in the past than prescriptive of what should or must happen in the future. Executive guidance, practitioner guides, explanatory notes are not legislation and not binding in any meaningful sense.
For example, the Cabinet Manual “is primarily a guide for those working in government, recording the current position … It is not intended to be legally binding or to set issues in stone. [It] records rules and practices, but is not intended to be the source of any rule.” And Erskine May is not “a set of rules” but rather “a description of how procedure in the House of Commons and House of Lords has evolved and the conventions that apply”. So these are historical works?
JOYS is intended “to inform and improve the quality of administrative decision making”. It is a practical guide for civil servants attempting to make decisions that are less open to challenge.
When does a document discussing or describing aspects of the UK’s constitution become a part of that constitution?
“the others mentioned here are more descriptive of what has usually happened in the past than prescriptive of what should or must happen in the future.”
Isn’t that how all enactments or declarations work, whether simple- or super-majoritarian, whether legislative or supralegislative (or any other)? A prospective command or urging is made, which we’ll assume has some kind of binding force, on formally lower-ranking institutions. The command can only express the (political) view of the spectrum of things that should & shouldn’t be done *as felt at the moment of enactment*. Thereafter there’s the problem that any other considerations which are revealed, changes in sentiment, circumstance, change the very calculus upon which the command is to operate. So for reasons of legitimacy (and straightforward applicability of its enactments) the enacting body can’t be a legislature or supra-legislative body whose dead hand purports to unavoidably command itself in the future. All declarations/enactments in democracies have this character: they’re voices from the past.
Of course you are right but the idea of a written constitution is that tehre is a single document, not too long, of limited scope and written and organized in such a way that as many as possible can grasp the meaning without the need for an expert to explain.
A second (not necessarily related to the single written document requirement) essential point re good constituions is that constitutional change should require a supermajority.
All the above appears to “assume-out” the state.
Might the “foundational texts” Andrew refers to be those which bring the state into being? We have a couple of those. From a quick look at the first, it covers matters including: the creation of the state; the Flag; identification of the Executive, a statutory mechanism for qualification of the Executive to act as such, and disqualification from that role; freedom of trade, and equality of trade regulation; distribution of taxation; currency; constitution of the legislature; the religious settlement – which was likely fairly novel in entrenching jurisdiction-specific settlements. Obviously its concerns are those of its time; and its subject matter is limited, though that appears to have been the point.
Just a thought…
I’m note sure if this is the Place appropriate place to leave a comment. But here is the text of a letter I sent to the Observer today, which is really about whether our constitution could protect us against an out and out populist.
“Michael Savage’s discussion (Observer 09:05:21, page 8) on the Tory’s timing of the next election, made me wonder if they even need to hold any more elections!
What protection do we have against Boris Johnson declaring himself Prime Minister for Life? He could follow the example of Putin in Russia making himself President for Life and the recent events in the USA where Trump attempted to discard democracy.
Perhaps, just to be on the safe side, Johnson might first of all get rid of Judicial Review and the Human Rights Act, and of course the Houses of Parliament are due to close anyway for repairs. Opposition politicians and any demonstrators could simply be labelled as terrorists.
Could better informed readers, please explain to me what protections we have in the British constitution to prevent such action by Johnson.”